brought under the dominican republic - central america - ita

der different arbitration rules, this third question might have caused this Tribunal
certain difficulties given the importance of investor-state arbitration generally and,
in particular, the potential unfairness of a State deciding, as a judge in its own interest,
to thwart such an arbitration after its commencement. In this case, however, no
such difficulties arise for three reasons.
4.84. First, the Tribunal accepts that, given that this was the first denial of benefits by any
CAFTA Party under CAFTA Article 10.12.2, denying benefits to the Claimant under
CAFTA was a decision requiring particular attention by the Respondent, to be exercised
upon sufficient and ascertainable grounds. Inevitably, such a decision requires
careful consideration and, inevitably, also time. It is not apparent to the Tribunal that
the Respondent thereby deliberately sought or indeed gained any advantage over the
Claimant, by waiting until 1 March 2010 (as regards notification to the USA) or 3
August 2010 (for its invocation of denial of benefits to the Claimant).
4.85. Second, this is an arbitration subject to the ICSID Convention and the ICSID Arbitration
Rules, as chosen by the Claimant under CAFTA Article 10.16(3)(a). Under
ICSID Arbitration Rule 41, any objection by a respondent that the dispute is not
within the jurisdiction of the Centre, or, for other reasons, is not within the competence
of the tribunal “shall be made as early as possible” and “no later than the expiration
of the time limit fixed for the filing of the counter-memorial”. In the Tribunal‟s
view, that is the time-limit in this case here incorporated by reference into
CAFTA Article 10.12.2. Any earlier time-limit could not be justified on the wording
of CAFTA Article 10.12.2; and further, it would create considerable practical difficulties
for CAFTA Parties inconsistent with this provision‟s object and purpose, as
observed by Costa Rica and the USA from their different perspectives as host and
home States (as also by the Amicus Curiae more generally). In the Tribunal‟s view,
the Respondent has respected the time-limit imposed by ICSID Arbitration Rule 41.
4.86. Third, the Tribunal does not accept the Claimant‟s arguments based on ICSID Articles
25(1) and 27(1).
4.87. As regards ICSID Article 27(1) precluding diplomatic protection in respect of a dispute
subject to ICSID arbitration before an award is rendered in such dispute, the
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